The D.C. Circuit today upheld the Federal Communications Commission’s (FCC) 2015 network neutrality regulations, vindicating the agency’s decision to reclassify internet service providers (ISPs) as common carriers under Title II of the Telecommunications Act of 1996. Equally as important – though potentially overshadowed by the opinion’s crucial reclassification component – is the court’s total rejection of the ISPs’ constitutional argument that network neutrality rules violate their First Amendment rights. Specifically, ISPs had argued that their transmission of data is speech and thus the regulation’s prohibition on blocking and discriminating amount to an unconstitutional violation of their speech rights as they might be compelled “to transmit speech with which they might disagree.”
The court disagreed and reaffirmed that, because ISPs are common carriers, they are not speakers or editors, but rather facilitate others’ ability to engage in expression. And because network neutrality regulations relate to ISPs’ common carrier role, “[t]hose obligations affect a common carrier’s neutral transmission of others’ speech, not a carrier’s communication of its own message.”
This point is obvious to anyone who’s used the internet: the ISP, which provides the connection between you and the websites you want to access, is not speaking or exercising editorial control when it transmits data. Rather, when an ISP transmits data that you requested when you visit reddit.com, you and reddit.com have expressive interests in that content – not the ISP.
By rejecting the ISPs’ First Amendment claim, the court not only maintained the current state of First Amendment doctrine with respect to common carriers, but importantly held the line against corporate First Amendment expansionism. As many scholars have documented – including Yochai Benkler, Jack Balkin, and Robert Post and Amanda Shanor – corporations have sought to undermine publicly interested regulations as a violation of corporate First Amendment rights. The ISPs’ constitutional claim that the transmission of data constitutes their speech represented a new front in that corporate war on regulation, and fortunately for the public and their interests in free expression, the D.C. Circuit rejected it.
Let’s review the key First Amendment elements of the opinion, all of which are contained in Part VII of the majority opinion, starting on page 106. (Judge Williams’ partial concurrence and dissent doesn’t address the First Amendment questions.)
Common Carriers Are Not First Amendment Speakers
As Judges Tatel and Srinivasan explain, common carriers like “telephone companies, railroads, and postal services” have historically been required to satisfy “[e]qual access obligations” like network neutrality “without raising any First Amendment issue.” And they spell out the logic animating this fact: “The absence of any First Amendment concern in the context of common carriers rests on the understanding that such entities, insofar as they are subject to equal access mandates, merely facilitate the transmission of the speech of others rather than engage in speech in their own right.” Simply, ISPs don’t have any expressive interests at stake when they act like conduits.
Further, consumers don’t perceive ISPs to be speaking or endorsing the content that they transmit. Because ISPs act as common carriers and neutrally provide access to all legal content that a user might want, “when a subscriber uses her broadband service to access internet content of her own choosing, she does not understand the accessed content to reflect her broadband provider’s editorial judgment or viewpoint.”
The court’s reasoning follows the logic that First Amendment and cyberlaw scholars, including Center for Internet & Society Director and Stanford Law Professor Barbara van Schewick, as well as the Stanford Communication Department Professors Ted Glasser and Fred Turner, outlined in an amicus brief supporting the FCC. There, they explained that the rules “are not subject to scrutiny under the First Amendment because they do not regulate any person’s speech” but rather regulate ISPs’ “conduct” – the act of “transmit[ting] others’ speech through [a] conduit.” Transmission isn’t a speech act because ISPs “do not act as speakers when they transmit the speech of others.”
ISPs Don’t Have Editorial Interests Like Newspapers or Cable Co’s
Additionally, the court made clear that ISPs, when operating as common carriers, do not have an editorial interest at stake. Judges Tatel and Srinivasan explain the point by comparing ISPs to newspapers and cable companies, which courts have held “engage in editorial discretion,” to explain that, here, “the exercise of editorial discretion is entirely absent with respect to broadband providers subject to the Order.” They continue:
Unlike with the printed page and cable technology, broadband providers face no such constraints limiting the range of potential content they can make available to subscribers. Broadband providers thus are not required to make, nor have they traditionally made, editorial decisions about which speech to transmit. See 2015 Open Internet Order, 30 FCC Rcd. at 5753 ¶ 347, 5756 ¶ 352, 5869–70 ¶ 549. In that regard, the role of broadband providers is analogous to that of telephone companies: they act as neutral, indiscriminate platforms for transmission of speech of any and all users.
Here too, the court echoes the arguments in the First Amendment scholars’ amicus brief:
Unlike newspapers and cable companies, broadband providers do not and need not exercise editorial control in order to determine how to fill a limited number of newspaper column inches or television channels. There is no limit to the applications, content, and services available over the Internet, and no technological constraint that prevents broadband providers from offering their users access to the entire Internet. Broadband Internet access service, as described above, is not the provision of a curated body of the Internet’s “greatest hits,” nor is there any technological reason why it has to be. Instead, that service gives users a connection over which they select for themselves the content they want to send and receive. It is much more like traditional phone networks; there is no need to “edit” or “select” who can make or receive phone calls.
Even If ISPs Eventually Provide Content, Their Common Carrier Status and Its Immunity From First Amendment Scrutiny Isn’t Undermined
The court acknowledged that if ISPs decide to provide content – for example, writing a Comcast or Verizon blog – then that content would qualify for First Amendment protection. But it made clear that such First Amendment protected activity doesn’t transform the common carrier component of what ISPs do such that it, too, is vulnerable to a constitutional attack.
Here’s the relevant paragraph from the opinion, which puts this point in context:
Because the rules impose on broadband providers the kind of nondiscrimination and equal access obligations that courts have never considered to raise a First Amendment concern—i.e., the rules require broadband providers to allow “all members of the public who choose to employ such facilities [to] communicate or transmit intelligence of their own design and choosing,” Midwest Video, 440 U.S. at 701 (internal quotation marks omitted)—they are permissible. Of course, insofar as a broadband provider might offer its own content—such as a news or weather site—separate from its internet access service, the provider would receive the same protection under the First Amendment as other producers of internet content. But the challenged rules apply only to the provision of internet access as common carriage, as to which equal access and nondiscrimination mandates present no First Amendment problem. (emphasis in original)
But the Court Leaves the Door Open to First Amendment Claims If ISPs Develop “Curated Internet Experience[s]”
However, the court explains, if ISPs “choose to exercise editorial discretion—for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience—it might then qualify as a First Amendment speaker.” Though the court doesn’t develop the argument because the net neutrality Order doesn’t cover these types of providers, it leaves the door open to the possibility of ISPs having an editorial interest.
Notably, the court used the word “might” – curating an internet experience might implicate an editorial interest and trigger the First Amendment. And it’s tricky to judge hypothetical curated experiences without facts. But to the extent that corporations use First Amendment arguments to undercut the principles of a free and open internet, judges should be skeptical, and should remember that users, consumers, and citizens have First Amendment interests, too.